F I L E D

United States Court of Appeals

Tenth Circuit
PUBLISH

October 25, 2006

UNITED STATES CO URT O F APPEALS

Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v.

No. 05-2141

EN RIQ U E PED RA ZA ,
Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT

FOR T HE D ISTRICT OF NEW M EXICO
(D .C . No. CIV-04-1433 M V)

Submitted on the briefs: *

Enrique Pedraza, Pro se.

Before BROR BY and EBEL, Circuit Judges, and KANE, ** District Judge.

EBEL, Circuit Judge.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
**

The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.

Enrique Pedraza appeals from an order of the district court in this

28 U.S.C. 2255 case denying his Fed. R. Civ. P. 59(e) motion. The motion
sought reconsideration of the district courts order construing his Fed. R. Civ. P.
60(b) motion as a successive application under 28 U.S.C. 2255. W e conclude,
pursuant to our decision in Spitznas v. Boone, No. 05-6236, 2006 W L 2789868
(10th Cir. Sept. 29, 2006), that the motion for reconsideration was itself in part a
second 2255 motion, and in part a true Rule 59(e) motion. W e therefore now
(1) affirm in part the denial of the Rule 59(e) motion; (2) vacate the denial, to the
extent the motion constituted a second 2255 motion; (3) construe M r. Pedrazas
request for a certificate of appealability (COA) as an application to file the
second 2255 motion; and (4) deny the application.
Factual and Procedural H istory
In 1991, M r. Pedraza was convicted after a jury trial in federal court of
conspiracy with intent to distribute, and possession with intent to distribute, in
excess of five kilograms of cocaine. He was sentenced to 384 months
imprisonment. This court affirmed his conviction and sentence on direct appeal.
United States v. Pedraza, 27 F.3d 1515, 1530-31 (10th Cir. 1994); United States
v. Pedraza, No. 94-2267, 1995 W L 755265 (10th Cir. Dec. 21, 1995)
(unpublished). W e further denied COA and dismissed his appeal from the district

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courts denial of his 2255 motion. United States v. Pedraza, No. 98-2148, 1998
W L 802283 (10th Cir. Nov. 18, 1998) (unpublished).
On December 27, 2004, M r. Pedraza filed a motion in district court entitled
M otion for leave of court to allow movant to restart the 1-year limitations period
to file a 2255 motion based on newly discovered evidence which warrants the
application of equitable tolling principles due to the prosecutions unlawful
suppression of material evidence favorable to his defense during trial, appeal and
original section 2255 limitation period. The district court, construing this
motion as a second or successive 2255 motion, ordered that it be transferred to
this court for authorization pursuant to 28 U.S.C. 1631.
On June 9, 2005, this court denied the transferred request for authorization
to file a successive 2255 motion. In the meantime, M r. Pedraza filed a motion
requesting the district court to reconsider its order transferring his 60(b) motion
to this court. Although this motion was not filed in district court until M arch 3,
2005, it was placed in the prison mailbox within ten days of the district courts
order. It therefore constituted a motion under Fed. R. Civ. P. 59(e). See Berrey
v. Asarco Inc., 439 F.3d 636, 641 n.3 (10th Cir. 2006) (stating motion for
reconsideration filed within ten days of judgment is treated as Rule 59(e)
motion).
In his Rule 59(e) motion, M r. Pedraza urged the district court to reconsider
its decision characterizing his prior pleading of December 27, 2004 as a
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successive 2255 motion rather than a true 60(b) motion. See Spitnzas, 2006
W L 2789868, at *1-*2 (explaining difference between treatment of successive
habeas pleadings and true Rule 60(b) motions). The district court, noting that it
had already transferred the underlying motion to this court as a second or
successive petition, determined that it lacked jurisdiction over the motion to
reconsider. In an order dated M arch 24, 2005, it therefore denied the motion to
reconsider.
Analysis
In Spitznas, we explained that a purported Rule 60(b) motion that in
substance or effect asserts or reasserts a federal basis for relief from the
petitioners underlying conviction is actually a second or successive habeas
petition (or, as in this case, a successive 2255 motion), 1 requiring authorization
by this court under 28 U.S.C. 2244(b) in order proceed in the district court. Id.,
at *1. Rule 59(e) motions are subject to the same characterization. See United
States v. Lam bros, 404 F.3d 1034, 1036-37 (8th Cir.) (concluding that a R ule
59(e) motion was subject to precertification because it sought ultimately to
resurrect the denial of [the] earlier 2255 motion), cert. denied, 125 S.Ct. 2953
(2005).

Although Spitznas involved the interplay between 2254 and Rule 60(b),
we have since stated that the same mode of analysis applies when addressing the
restriction on second or successive motions contained in 2255. United States v.
Nelson, No. 06-6071, 2006 W L 2848113 (10th Cir. Oct. 6, 2006).
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In his Rule 59(e) motion, M r. Pedraza argued that the Rule 60(b) motion
was in fact a true 60(b) motion, because it challenged the integrity of the final
order entered in his original 2255 proceedings. In support of this contention,
M r. Pedraza argued extensively that the Government had engaged in willful
concealment of exculpatory evidence during the period of time when he could
have filed his original 2255 motion, and that he should now be permitted to
raise a 2255 claim under Brady v. M aryland, 373 U.S. 83 (1963). This was
essentially the same argument he presented in his Rule 60(b) motion.
To the extent M r. Pedrazas Rule 59(e) motion sought recharacterization of
his Rule 60(b) motion as a true Rule 60(b) motion, his argument should have
been addressed to this court, since the case had been transferred here and the
request for authorization was pending. Therefore, the district court properly
denied his motion. To the extent that the Rule 59(e) motion presented substantive
argument reasserting a federal basis for relief from his underlying conviction, the
district court should have transferred the motion to this court as an additional
request to file a second 2255 motion.
Thus, the portion of the Rule 59(e) motion that raised substantive
arguments in support of a second 2255 claim is itself a second 2255 motion.
W e construe M r. Pedrazas request for a COA as a request for authorization to
file a second or successive 2255 motion. In our order of June 9, 2005, we
denied him authorization to file essentially the same 2255 claim he seeks to file
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now. Having considered M r. Pedrazas arguments we see no reason to depart

from our earlier decision denying authorization, and we therefore deny his request
for authorization to file a second or successive motion.
W e AFFIRM the district courts order denying M r. Pedrazas Rule 59(e)
motion, to the extent that the motion sought recharacterization of a Rule 60(b)
motion already transferred to this court; VACATE the order to the extent that the
motion constituted a second 2255 motion and should therefore have been
transferred to this court; construe M r. Pedrazas request for COA as a request to
file a second 2255 motion, and DENY the same. W e grant M r. Pedrazas
motion to proceed on appeal in forma pauperis.

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